People v. Whisenant

Decision Date01 June 1971
Docket NumberNo. 31,J,31
Citation187 N.W.2d 229,384 Mich. 693
PartiesThe PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Albert T. WHISENANT, Defendant-Appellee. an. Term.
CourtMichigan Supreme Court

James K. Miller, Kent County Pros. Atty., Donald A. Johnston III, Chief Appellate Atty., Grand Rapids, for plaintiff-appellant.

Thomas F. Blackwell, Michael S. Barnes, Grand Rapids, for defendant-appellee, Albert T. Whisenant.

Before the Entire Bench.

SWAINSON, Justice.

On December 21, 1965, an armed robbery was committed at a gas station in Grand Rapids, Michigan. On February 3, 1966, a warrant was issued for defendant's arrest on suspicion of his having been an accomplice in this robbery. Defendant was arrested at his place of employment. He was not informed of his right to have counsel present during any custodial interrogation and prior to his making any statement, nor did he waive any of these rights. During the custodial interrogation and without counsel present, defendant made a writeen confession concerning the armed robbery of December 21, 1965.

Defendant's jury trial was held on June 27, 1966, two weeks subsequent to the Miranda decision 1 which became effective on June 13, 1966. Defendant's confession of February 3, 1966, was admitted into evidence through the testimony of detective Woronko, who had interrogated defendant. Defendant was found guilty of the crime of robbery armed, and on July 18, 1966, was sentenced to 7 1/2 to 15 years imprisonment.

At the time of trial, defendant objected to the use of the confession on the ground that it was inadmissible under the standards laid down in Miranda. The Court of Appeals reversed his conviction and remanded to the trial court for retrial with the express instruction that the contested confession not be admitted. 2

The Court of Appeals specifically held that the trial court was in error in admitting the confession in light of the fact that the defendant had not been informed of his constitutional right to have counsel present during the interrogation period.

Upon remand, the defendant was again tried on July 29 and 30, 1968, by a jury and befor the same judge. The contested confession was again admitted over the strenuous objection of the defendant, upon the finding of the trial judge that it was admissible under Title II of the Federal Omnibus Crime Control and Safe Streets Act of 1968. Defendant was again found guilty and again sentenced to 7 1/2 to 15 years.

On August 28, 1969, 3 the Court of Appeals held that the Federal Omnibus Crime Control Act referred to only Federal prosecutions and thus was inapplicable to this case. In addition, the Court of Appeals held that the trial court was bound to follow the law as stated by the appellate court. The Court of Appeals then reversed and again remanded for a new trial without the use of the confession.'

The People thereafter petitioned for rehearing, relying upon this Court's decision in People v. Woods, 382 Mich. 128, 169 N.W.2d 473, decided August 4, 1969. On rehearing, the Court of Appeals adhered to its earlier opinion and again remanded. 4 We granted leave to appeal (383 Mich. 776).

The issue before this Court is whether the standards set down in Miranda v. Arizona, Supra, concerning the rights of an accused during custodial interrogation are applicable to all trials commenced after June 13, 1966, or whether the standards are applicable only to prosecutions commenced after that date.


In Johnson v. New Jersey (1966), 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, decided one week after Miranda, the court stated (p. 721, 86 S.Ct. p. 1774--1775):

'In this case we are called upon to determine whether Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, should be applied retroactively. We hold that Escobedo affects only those cases in which the Trial began after June 22, 1964, the date of that decision. We hold further that Miranda applies only to cases in which the Trial began after the date of our decision one week ago.' (Emphasis added.)

This is the holding of the Johnson Case and would, without more, be controlling upon this Court. However, the court also said (p. 733, 86 S.Ct. p. 1781):

'In the light of these additional considerations, we conclude that Escobedo and Miranda should apply only to Cases commenced after those decisions were announced.' (Emphasis added.)

This statement was, of course, in conflict with the earlier one quoted above. 'Prosecutions commenced' and 'trials commenced' are clearly not synonymous. However, the court then seemingly disregarded the statement when it stated (p. 734, 86 S.Ct. p. 1781):

'Because Escobedo is to be applied prospectively, this holding is available only to persons whose Trials began after June 22, 1964, the date on which Escobedo was decided. * * *

'This we have done in Miranda, and these guidelines are therefore available only to persons whose Trials had not begun as of June 13, 1966.' (Emphasis added.)

In Jenkins v. Delaware (1969), 395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253, the court held that the standards set down in Miranda did not apply to persons whose retrials had commenced after the date of Miranda if the original trial had begun before that date. Chief Justice Warren, speaking for the court, stated (p. 219, 89 S.Ct. p. 1680--1681):

'In Johnson, after considering the need to avoid unreasonably disrupting the administration of our criminal laws, we selected the commencement of trial as determinative. We of course could have applied Miranda to all judgments not yet final, although they were obtained in good-faith reliance upon constitutional standards then applicable. See Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). As we pointed out, however, that choice 'would (have) impose(d) an unjustifiable burden on the administration of justice.' 384 U.S. at 733, 86 S.Ct., at 1781. On the other hand, we could have adopted the approach we took in Stovall (Stovall v. Denno (1967), 388 U.S. 293, 87 [384 Mich. 699] S.Ct. 1967, 18 L.Ed.2d 1199) and Desist (Desist v. United States (1969), 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248) and made the point of initial reliance, the moment the defendant is interrogated, the operative event. See Schaefer (Schaefer, The Control of 'Sunbursts': Techniques of Prospective Overruling, 42 N.Y.U.L.Rev. 631, (1967)) at 646. But in an effort to extend the protection of Miranda to as many defendants as was consistent with society's legitimate concern that convictions already validly obtained not be needlessly aborted, we selected the commencement of the trial.'

These statements from Jenkins while not controlling because they are dicta, in that case, are nevertheless instructive and do appear to give evidence of the United States Supreme Court's intent. None of the justice dissented from Chief Justice Warren's statement on this point.

Thus, while the United States Supreme Court has made conflicting statements as to the date of application of the Miranda decision, we feel that it has been sufficiently clear to hold the Miranda applies to all trials commenced in Michigan after June 13, 1966.

The Michigan Supreme Court has also previously clearly enunciated the law on this point in question in the case of People v. Fordyce (1966), 378 Mich. 208, 144 N.W.2d 340. The Court stated (p. 211, 144 N.W.2d p. 341--342):

'On June 20, 1966, the Supreme Court of the United States in the case of Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, held that the guidelines set forth in Miranda are available only to persons whose trials had not begun as of June 13, 1966.'

In Johnson v. New Jersey, Supra, although there was one reference to the term 'prosecution commenced,' the court stated at three separate points in the decision that the determinative date was 'trial commenced.' The People quote several statements which, they assert, support their contention that 'prosecution commenced' applies. However, these statements merely indicate why the court applied Miranda prospectively and not whether the 'prosecution commenced' or 'trial commenced' is the applicable date.

Thus, while the United States Supreme Court might have chosen to limit Miranda to confessions taken after June 13, 1966, clearly it did not do this. There are several reasons to support our conclusion on the choice of 'trials commenced.' First, the choice of 'prosecutions commenced' could not serve any useful purpose. If the court felt that reliance was the prime factor, the applicable date should be 'all confessions obtained after June 13, 1966.' 5 'Prosecutions commenced' certainly would not lend itself to the test of reliance.

Second, the United States Supreme Court in asserting an applicable date attempts to lend uniformity and certainty to the decisions of lower and State courts. The choice of 'prosecutions commenced' accomplishes neither of these purposes. In People v. Clark (1876), 33 Mich. 112, in discussing when a prosecution is commenced, the Court stated (p. 119):

'The issuing of the warrant in good faith, and delivery to an officer to execute, is a sufficient commencement, if it appears that the defendant was afterwards arrested upon that warrant and bound over for trial.'

See, also, People v. Clement (1888), 72 Mich. 116, 40 N.W. 190, and In re Grzyeskowiak (1934), 267 Mich. 697, 255 N.W. 359.

In Virginia, however, prosecution is commenced at arraignment. 6 Other States have different rules. For example, in California and in Florida, the filing of an indictment is the commencement of the prosecution. 7

Thus, the problem of equal protection presents itself. If a warrant was issued in Michigan on June 12, 1966, and the suspect arrested and interrogated, his confession could be used against him. However, if a warrant was issued in Virginia on June 12, 1966, and a suspect was arrested and interrogated but not...

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